On March 9, 2011, the House of Representatives Committee on Agriculture unanimously approved the Reducing Regulatory Burdens Act of 2011 (H.R. 872), which would modify the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) to eliminate provisions that require pesticide applicators to obtain a permit from the Environment Protection Agency (EPA) before discharging certain pesticides or their residues on or near surface waters.
Most advocates of H.R. 872 claim that it is required to reduce unnecessary government oversight which is, they allege, burdensome and duplicative. In fact, this is one of several bills proposed predominately by Republican lawmakers aimed at reducing regulatory powers of the EPA, in particular powers to regulate water pollution, that are currently awaiting action in House committees.
The objection, according to a press release from Rep. Cardoza, California Democrat and bill’s co-sponsor, is that beginning on April 9th, 2011, farmers and other pesticide applicators and operators would have to obtain a pesticide discharge permit in addition to the required pesticide registration. Those who do not comply with the new regulation could be fined up to $37,500 per day per violation, and could be sued under the Clean Water Act.
Pointing out that permits are important, many health, consumer and environmental advocates argue that permitting under CWA compliments rather than duplicates the pesticide registration reviews conducted by EPA under FIFRA and is necessary to ensure that the discharge of a registered pollutant will not harm the quality of water.
The official description of H.R. 872 sounds benign,“to clarify Congressional intent regarding the regulation of the use of pesticides in or near navigable waters, and for other purposes,” but the outcome would be anything but, since “clarifying” would result in the removal of important protections. (Emphasis added).
The EPA permitting requirements that H.R. 872 seeks to eliminate stem from a 2009 Sixth Circuit decision that found the EPA’s loose interpretation of the CWA under the Bush Administration, which redefined an entire class of pesticides to avoid usage permits, unreasonable. However, because the issues considered involve a complex interplay between the CWA, FIFRA and EPA’s regulatory scheme, not easily summed up in media preferred sound bites, neither the bill nor its impact, is getting much attention.
In essence, the Sixth Circuit in National Cotton Council v. EPA, held that EPA could not exempt pesticide users from the requirements of the CWA and, as such, those using pesticides in or near surface water must apply for a permit under the CWA’s National Pollutant Discharge Elimination System (NPDES) program, even if the pesticide had been approved for use by EPA under FIFRA.
What the bill sponsors gloss over is that CWA and FIFRA are not interchangeable laws and were designed to address different goals.
And, politics aside, the point is that CWA is aimed at reducing pollution while FIFRA is more concerned with labeling chemicals and their use pursuant to that label.
Congress enacted the CWA ‘‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’’1 To that end, EPA is empowered by the CWA to prevent, reduce, or eliminate pollution of the navigable waters and ground waters, with the ultimate goal being the total elimination of the discharge of pollutants into navigable waters. 2
FIFRA’s purpose, however, does not include the ultimate elimination of pollutant discharges, or even that pollutant discharges be minimized. In fact, as one scholar noted, FIFRA does not specifically address the chemical, physical, and biological integrity of U.S. waterways. Instead, FIFRA establishes a nationally uniform registration scheme by which pesticides are registered for use by the public. In other words, it requires that each pesticide is labeled and that each label describe the permissible use for that pesticide. Furthermore, and in contrast to the CWA, FIFRA regulates only a small number of pollutants and lacks provisions designed to regulate pesticide applications on a water body-specific basis.
Despite its adverse impact on the health of the nation’s waterways, after the unanimous approval by the House Agricultural committee, H.R. 872 was assigned to the House Transportation and Infrastructure committee, which approved it 46-8 on March 15, 2011. The bill was recommended for consideration by the House as a whole.
The bill was sponsored by Rep. Bob Gibbs, a Republican of Ohio, together with 78 bi-partisan co-sponsors.